VISITING EXPERTS PAPERS 150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS HUMAN TRAFFICKING PROSECUTIONS Karima Maloney* HUMAN TRAFFICKING PROSECUTIONS UNAFEI January 2012 Karima Maloney Civil Rights Division U.S. Department of Justice 1 * Deputy Chief of the Criminal Section, Civil Rights Division, Department of Justice of U.S.A. 41
RESOURCE MATERIAL SERIES No.87 Today s Goals Discuss the U.S. s approach to combating the human trafficking problem Debunk Myths about Human Trafficking Understand U.S. Human Trafficking Statutes Review the Investigation & Prosecution Model 2 The Big Picture: The Global Anti Trafficking Movement Prevention Protection Prosecution 3 42
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Approach to Human Trafficking Problem Protect human trafficking victims by debilitating traffickers Prevent human trafficking offenses by dismantling and disabling human trafficking networks Prosecute to declare human trafficking conduct intolerable under the laws and norms of the nation 4 43
RESOURCE MATERIAL SERIES No.87 A Rights Based Approach: Victim Centered Prosecutions Victim centered criminal justice process: Vindicates victim s individual rightsindividual rights Non Prosecution of Victims Empowers victim as an active participant Aids transition from traumatized victim to traumatized victim to empowered survivor Transformation of law enforcement culture Abandonment of pre conceptions Evolution of trauma informed approaches 6 U.S. Human Trafficking Strategy Outreach Coordination Building Coalition Building 7 44
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Role of Human Trafficking Prosecution Unit Specialized Unit in DOJ s Civil Rights Division since 2007 Prosecutorial expertise enforcing involuntary servitude and slavery laws and Trafficking Victims Protection Act Criminally prosecute novel, complex, multi jurisdictional and international trafficking cases in partnership with United States Attorney s Offices Coordinate with federal, state, local, international and non governmental partners 8 Partnering Regionally United States Attorney s Office Federal Law Enforcement: ICE, FBI, DOL Human Trafficking Task Forces Forthcoming ACTeams Local Law Enforcement Government Agencies NGOs 9 45
RESOURCE MATERIAL SERIES No.87 What is Human Trafficking Under the U.S. Criminal Code? Compelling or coercing a person s labor, services, or commercial sex acts; or commercial sexual exploitation of a minor 10 What is Human Trafficking? Working Definition Human Traffickingg is compelling someone to work or to engage in a commercial sex act. 11 46
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS What Human Trafficking Is Not! Illegal Child Adoption Trade in Human Organs Child Pornography Prostitution (Not a Federal Vice Squad) Labor Violations Poor Working or Living Conditions There are other statutes that deal with theses offenses. 12 Trafficking vs. Smuggling Trafficking Focus is coercion and exploitation; no movement required Smuggling Focus is transporting or harboring undocumented person Victim can be citizen, documented migrant, or undocumented migrant Must involve undocumented migrant Crime against individual rights Crime against integrity of border Criminalized in Title 18 Criminalized in Title 8 13 47
RESOURCE MATERIAL SERIES No.87 In a Nutshell... Core of the crime is coercion Can occur in any industry, legal or illegal Victims can be men, women, children; undocumented, guestworkers, or citizens Coercion can be psychological Victims are often hidden in plain sight and reluctant to confide: case identification requires detection of subtle indicators 14 Myths About Human Trafficking 15 48
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Human Trafficking Myths Slavery is a historical blight that no longer exists. 12.3 Million victims of human trafficking U.S. Department of State, Trafficking in Persons Report 2010 27 million people held in slavery worldwide Free The Slaves 2011 100,000 children in U.S. are in sex trade Polaris Project 2011 16 Human Trafficking Myths There are no foreigners in the case The law does not require foreign victims or defendants. United States v. Evans, 476 F.3d 1176 (11th Cir. 2007) (both the Defendant and the human trafficking victim were United States citizens). 17 49
RESOURCE MATERIAL SERIES No.87 Human Trafficking Myths Trafficking Involves Movement and Boarders No Boarders Needed No Legal Requirement Trafficking is Misleading Coercion not Movement 18 Human Trafficking Myths Trafficking Involves Movement and Boarders Trafficking Exploitation Focus Crime Against a Person Coerced / Involuntary Citizen or Undocumented Smuggling Transportation Focus Crime Against a Border Voluntary Undocumented 19 50
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Human Trafficking Myths This case does not involve prostitution or sex. Recent studies show the majority of human trafficking in the world takes the form of forced labor. Dept. of State s 2010 Trafficking in Persons Report. Restaurant Workers Farmers Factory Workers Domestic Servants Hotel Employees Restaurant Workers Don t Forget About the Labor Cases 20 Federal Laws Involuntary Servitude and Slavery Crimes 18 U.S.C. 1581 (Peonage) 18 U.S.C. 1583 (Enticement Into Slavery) 18 U.S.C. 1584 (Involuntary Servitude) Trafficking Victims Protection Act 18 U.S.C. 1589 (Forced Labor) 18 U.S.C. 1590 (Trafficking Into Servitude) 18 U.S.C. 1591 (Sex Trafficking) 18 U.S.C. 1592 (Document Servitude) 21 51
RESOURCE MATERIAL SERIES No.87 Forms of Coercion ISS [ 1581-84] TVPA [ 1589-94] Physical Harm YES YES Physical Restraint YES YES Legal Coercion YES YES Psychological Harm NO YES Harm to Others NO YES Scheme, Plan, Pattern NO YES Two Flagship TVPA Crimes Forced Labor 1589 Sex Trafficking 1591 23 52
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Forced Labor 1589 3 Elements: Provided or obtained the labor or services of a person; Did so through one of the four prohibited means; and Did so knowingly 24 Forced Labor 18 U.S.C 1589 1 Knowingly 2 Provides or Obtains Labor or Services of a Person 3 Through 1 of 4 Prohibited Means Force or Threats Serious Harm Abuse of Law Scheme Plan or Pattern 25 53
RESOURCE MATERIAL SERIES No.87 Forced Labor 1589 Labor of Services Broad Definitions of Labor or Services The Tenth Circuit rejected a limited definition of labor and services to work in an economic sense. Instead, the Court upheld jury instructions defining labor as the expenditure of physical or mental effort and services as conduct or performance that assists or benefits someone or something. United States v. Kaufman, 546 F.3d 1242, 1262 63 (10th Cir. 2008) (involving mentally disabled adult farm workers forced to perform videotaped sex acts). Labor and services should not be narrowed to only mean work for which compensation is ordinarily given. United States v. Marcus, 487 F.Supp.2d 289, 300 (EDNY 2007) (involving recorded acts of bondage, domination, and sadism). 26 Forced Labor 1589 Four Prohibited Means 1. Force, or Threats of Force or Physical Restraint 2. Serious Harm or Threats of Serious Harm 3. Abuse or threatened abuse of law or legal process 4. Scheme, plan, or pattern intended to instill fear of serious harm or physical restraint to any person Only Need 1 Prohibited Means. 27 54
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Forced Labor 1589 Prohibited Means: Serious Harm: that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm. 18 U.S.C. 1589(c)(2) Physical Harm Nonphysical Harm * Threats * Psychological Harm * Beatings * Financial Harm * Sexual Violence * Reputational harm 28 Forced Labor 1589 Prohibited Means: Abuse of Legal Process Threat of deportation, arrest, detention, institutionalization Warnings unlawful where used to coerce. 29 55
RESOURCE MATERIAL SERIES No.87 Forced Labor 1589 Prohibited Means: Abuse of Legal Process The term abuse or threatened abuse of law or legal process means the use or threatened use of law or legal process, whether administrative, civil, criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action. 18 U.S.C. 1589(c)(1) 30 Forced Labor 1589 Prohibited Means: Scheme, Plan, Pattern Totality of Circumstances from the Victim s Perspective Manipulation of debts Verbal abuse and intimidation Demeaning and demoralizing conduct Psychological manipulation and control Confiscation of identification documents Inhumane living and working conditions Ominous comments Monitoring and surveillance Sexual Abuse 31 56
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Forced Labor 1589 Penalties Imprisonment up to Life If death results; OR If acts include kidnapping (or attempt), aggravated sexual abuse (or attempt), or an attempt to kill Imprisonment up to 20 years No aggravating factors 32 Sex Trafficking 1 Knowingly 2 Recruited, enticed, harbored, transported, provided, obtained or maintained Or Benefits Financially 3 Knowing Or Reckless Disregard 4 Force, Fraud, or Coercion Or Under 18 5 Interstate or Foreign Commerce 6 Commercial Sex Act 34 57
RESOURCE MATERIAL SERIES No.87 Sex Trafficking 1591 2 Knowledge Requirements Knowingly recruits, entices, harbors, transports, provides, obtains, or maintains a person for a commercial sex act or benefits financially. Knowing, or reckless disregard of the fact that force, fraud or coercion would be used or that victim was under 18 Knowledge of age is required to prove crime but not for victim status Reasonable Opportunity to Observe 35 Sex Trafficking 1591 By Force, Fraud, or Coercion 18 U.S.C. 1591(e)(2) defines coercion as threats of serious harm to or physical restraint against any person any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint abuse or threatened abuse of the legal process **Basically the same as the prohibited means in 1589** 36 58
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Sex Trafficking 1591 Sex Trafficking of a Minor Under 18 ( not attained the age of 18 ) Knowing or in Reckless Disregard Reasonable Opportunity to Observe 18 U.S.C. 1591(c) 37 Sex Trafficking 1591 What is a Commercial Sex Act? any sex act, on account of which anything of value is given to or received by any person. 1591(e)(3). No requirement that the Defendant had sex with the victim. Compare 18 U.S.C. 2246 (2) sexual act and 18 U.S.C. 2246 (3) sexual contact For exotic dancing or massage consider 1589 Forced Labor 38 59
RESOURCE MATERIAL SERIES No.87 Sex Trafficking 1591 In or Affecting Interstate or Foreign Commerce Crossing state lines Interstate communications, facilities, or supplies, Aggregate affect on intrastate commercial or economic activity No One Has to Travel Across State Lines! 39 Sex Trafficking 1591 In or Affecting Interstate or Foreign Commerce Victims crossing state lines Interstate communications, facilities, or supplies, e.g. hotels, cell phones, condoms, advertising, credit cards, wire transfers Aggregate effect of intrastate commercial or economic activity Develop all theories 40 60
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Sex Trafficking 1591 Penalties Imprisonment of 15 years to Life Force, fraud, or coercion used; OR Defendant enticed, harbored, transported, provided, or obtained minor under 14 years old. Mandatory Minimum of 15 Years. Imprisonment of 10 Years to Life Defendant enticed, harbored, transported, provided, or obtained a minor who was at least 14 years old but under 18 years old. Mandatory Minimum of 10 Years. 41 Sex Trafficking 1591 Mandatory Life Imprisonment for Repeated Sex Offenses against Children 3559(e) Mandatory life imprisonment if the defendant in a 1591 sex trafficking of a minor prosecution has a prior state or federal conviction for a sexual offense against a minor who has not attained the age of 17. 42 61
RESOURCE MATERIAL SERIES No.87 Prosecuting Human Trafficking: The Challenges Hidden crime Victim trauma, shame, fear, loyalty, and distrust Complex, extended relationship with trafficker Intersection with violent crime, sex crime, organized crime, financial crime, immigration, labor exploitation, and visa fraud 44 62
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Investigation & Prosecution Model Why is the model different that most other crimes? Multiple Law Enforcement agencies 2 types of Federal Prosecutors Social Service providing NGOs Legal Service providing NGOs or Pro Bono Victim Lawyers Federally funded task forces Multiple victims Victim / Witness coordinators All parties play an important part... but there are a lot of cooks in the kitchen 45 Trafficking Indicators Monitoring and surveillance Restricted or monitored communication Spokesperson for group Inconsistent or rehearsed stories Locks and fences positioned to restrict workers rather than to secure premises Employer control over identification documents and pay Overcrowded, substandard living or working conditions 46 63
RESOURCE MATERIAL SERIES No.87 Possession of legal/identification documents Security/confinement to restrain victims (Barbed wire, dogs, bouncer/guard) Restricted/monitored/controlled movement Physical abuse 47 Think of Indicators Like Balloons. 48 64
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Poor Work Conditions Employment Discrimination Debts Workplace Assault Monitored Movement Location of Identity Documents Wage and Hour Violations Focus on how these things are tethered to the coercive scheme. 49 Investigation & Prosecution Model Four Aspects of the Investigation 1. The Objective Facts 2. The Victim s Story 3. Corroborating the Victim 4. Anticipating Defenses 50 65
RESOURCE MATERIAL SERIES No.87 Prosecution Model Initial Areas of Investigative Focus (Objective Factors) Age of Victims Subject s opportunity to observe minor victims Type of Labor or Services Type of Force or Coercion: totality of conduct and conditions Victim s Vulnerabilities and Inequalities Movement of Victim 51 Prosecution Model Proving Coercion: Two Key Principles Climate of Fear: Totality of Conduct and Conditions Victim Vulnerabilities 52 66
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Prosecution Model Climate of Fear Locks, fences, surveillance cameras Control over documents and pay Restricted movement; isolation Monitored communications Inhumane conditions Inadequate food, medical care Arbitrary penalties, rules, control Economically irrational and demoralizing working conditions Interactions with law enforcement 53 Prosecution Model Victim testimony is Crucial Crime requires showing of labor obtained by coercion subjective component Show vulnerabilities Expect evolving / contradicting statements In-person testimony Lose case without it 54 67
RESOURCE MATERIAL SERIES No.87 Corroborate the Victim Witnesses Background, vulnerability, recruitment Isolation witnesses & negative witnesses Never saw victim out alone Never heard victim speak English Previous victims Outcry witnesses Witnesses to any interactions Visitors Customers 55 Corroborate the Victim Physical Evidence Wire transfers, ledgers, bank records, receipts, computers Physical surroundings causing isolation and fear Visas, immigration and travel records Phone records Letters to victim s family Photos, videotapes Medical records Leases, registrations linking subjects Prostitution paraphernalia: condoms, lubricant, lingerie, medications, tickets, business cards 56 68
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Defenses: Benefits Bias Making it up for Immigration Benefits Legal Status to stay in the United States Work authorization These women are not stupid. They may have some education. They may come in here dressed up and look pitiful. In a lot of ways they are pitiful. I submit to you that they are street smart. And anyone who lives on the street, who gets smuggled across the border, who uses a coyote and comes into this country for the same reason most people come in here is to make the big bucks. And they know how to con. I submit to you that they conned the investigators in this case, just like they conned their customers.... I submit to you that they have gone home after testifying here today feeling pretty damn satisfied with themselves. --Attorney for Def. Santi Villaman (May 18, 2011) 57 Defenses: Benefits Bias Legal Status to stay in the United States Work authorization She exaggerated her case, and it suited everyone s purpose to just go along with it. -- Attorney for Def. Evelyn Theodore New York Times (May 18, 2008) Front Issues in Voir Dire Outweighed by corroboration Compare Benefits to Coercion 58 69
RESOURCE MATERIAL SERIES No.87 Defenses: Initial Consent If a person willingly begins work, but later desires to withdraw and is then forced to remain by the use or threatened use of coercion, that person s service becomes involuntary. Pattern Crim. Jury Instr. 11th Cir. 59. 59 Defenses: Payment of Wages Whether a person is paid a salary or wage is not determinative of whether that person has been held in involuntary servitude.[i]f a person is forced to labor against that person s will by the use or threatened use of coercion, such service is involuntary even though the person is paid Pattern Crim. Jury Instr. 11th Cir. 59. 60 70
150TH INTERNATIONAL SENIOR SEMINAR VISITING EXPERTS PAPERS Anticipating Defenses The Better Off Defense Anticipating Defenses The Happy Slave Defense 61 Anticipating Defenses The Escape Defense opportunity to flee is not determinative [if] defendants placed [victim] in such fear or circumstances that he did not reasonably believe he could leave Bradley, 390 F.3d 153 62 71
RESOURCE MATERIAL SERIES No.87 Anticipating Defenses Religious / Cultural Defense This is the way we do things in our country. According to our faith.... 63 Prosecution Team Civil Rights Division Prosecutor Assistant U.S. Attorney ICE Agent FBI Agent Translator V/W Coordinator Victim has a pro bono attorney and NGO representative 64 72